Florida Senate - 2011                              CS for SB 504
       
       
       
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Bogdanoff
       
       
       
       586-02854-11                                           2011504c1
    1                        A bill to be entitled                      
    2         An act relating to child visitation; amending s.
    3         39.0139, F.S.; revising legislative intent; requiring
    4         probable cause of sexual abuse in order to create a
    5         presumption of detriment; providing that persons
    6         meeting specified criteria may not visit or have
    7         contact with a child without a hearing and court
    8         order; revising requirements for a hearing seeking to
    9         rebut a presumption of detriment; revising provisions
   10         relating to hearings on whether to prohibit or
   11         restrict visitation or other contact with the person
   12         who is alleged to have influenced a child’s testimony;
   13         providing an effective date.
   14  
   15  Be It Enacted by the Legislature of the State of Florida:
   16  
   17         Section 1. Paragraph (b) of subsection (2) and subsections
   18  (3), (4), and (6) of section 39.0139, Florida Statutes, are
   19  amended to read:
   20         39.0139 Visitation or other contact; restrictions.—
   21         (2) LEGISLATIVE FINDINGS AND INTENT.—
   22         (b) It is the intent of the Legislature to protect children
   23  and reduce the risk of further harm to children who have been
   24  sexually abused or exploited by a parent or other caregiver by
   25  placing additional requirements on judicial determinations
   26  related to contact between a parent or caregiver who meets the
   27  criteria under paragraph (3)(a) and a child victim in any
   28  proceeding pursuant to this chapter visitation and other
   29  contact.
   30         (3) PRESUMPTION OF DETRIMENT.—
   31         (a) A rebuttable presumption of detriment to a child is
   32  created when a parent or caregiver:
   33         1. A court of competent jurisdiction has found probable
   34  cause exists that a parent or caregiver has sexually abused a
   35  child Has been the subject of a report to the child abuse
   36  hotline alleging sexual abuse of any child as defined in s.
   37  39.01;
   38         2. A parent or caregiver has been found guilty of,
   39  regardless of adjudication, or has entered a plea of guilty or
   40  nolo contendere to, charges under the following statutes or
   41  substantially similar statutes of other jurisdictions:
   42         a. Section 787.04, relating to removing minors from the
   43  state or concealing minors contrary to court order;
   44         b. Section 794.011, relating to sexual battery;
   45         c. Section 798.02, relating to lewd and lascivious
   46  behavior;
   47         d. Chapter 800, relating to lewdness and indecent exposure;
   48         e. Section 826.04, relating to incest; or
   49         f. Chapter 827, relating to the abuse of children; or
   50         3. A court of competent jurisdiction has been determined a
   51  parent or caregiver by a court to be a sexual predator as
   52  defined in s. 775.21 or a parent or caregiver has received a
   53  substantially similar designation under laws of another
   54  jurisdiction.
   55         (b) For purposes of this subsection, “substantially
   56  similar” has the same meaning as in s. 39.806(1)(d)2.
   57         (c) A person who meets any of the criteria set forth in
   58  paragraph (a) may not visit or have contact with a child without
   59  a hearing and order by the court.
   60         (4) HEARINGS.—A person who meets any of the criteria set
   61  forth in paragraph (3)(a) who seeks to begin or resume contact
   62  with the child victim shall have the right to an evidentiary
   63  hearing to determine whether contact is appropriate may visit or
   64  have other contact with a child only after a hearing and an
   65  order by the court that allows the visitation or other contact.
   66  At such a hearing:
   67         (a) Prior to the hearing, the court shall The court must
   68  appoint an attorney ad litem or a guardian ad litem for the
   69  child if one has not already been appointed. Any attorney ad
   70  litem or guardian ad litem appointed shall have special training
   71  in the dynamics of child sexual abuse.
   72         (b) At the hearing, the court may receive and rely upon any
   73  relevant and material evidence submitted to the extent of its
   74  probative value, including written and oral reports or
   75  recommendations from the child protective team, the child’s
   76  therapist, the child’s guardian ad litem, or the child’s
   77  attorney ad litem, to the extent of its probative value in its
   78  effort to determine the action to be taken with regard to the
   79  child, even if these reports, recommendations, and evidence may
   80  not be admissible under the rules of evidence competent in an
   81  adjudicatory hearing.
   82         (c) If the court finds the person proves by clear and
   83  convincing evidence that the safety, well-being, and physical,
   84  mental, and emotional health of the child is not endangered by
   85  such visitation or other contact, the presumption in subsection
   86  (3) is rebutted and the court may allow visitation or other
   87  contact. The court shall enter a written order setting forth
   88  findings of fact and specifying any conditions it finds
   89  necessary to protect the child.
   90         (d) If the court finds the person did not rebut the
   91  presumption established in subsection (3), the court shall enter
   92  a written order setting forth findings of fact and prohibiting
   93  or restricting visitation or other contact with the child.
   94         (6) ADDITIONAL CONSIDERATIONS.—
   95         (a) Once a rebuttable presumption of detriment has arisen
   96  under subsection (3) or if visitation is ordered under
   97  subsection (4) and If a party or participant, based on
   98  communication with the child or other firsthand knowledge,
   99  informs the court that a person is attempting to influence the
  100  testimony of the child, the court shall hold a hearing within 7
  101  business days to immediately suspend visitation or other
  102  contact. The court shall then hold a hearing and determine
  103  whether it is in the best interests of the child to prohibit or
  104  restrict visitation or other contact with the person who is
  105  alleged to have influenced the testimony of the child.
  106         (b) If a child is in therapy as a result of any finding of
  107  the allegations or conviction convictions contained in paragraph
  108  (3)(a) and the child’s therapist reports that the visitation or
  109  other contact is impeding the child’s therapeutic progress, the
  110  court shall convene a hearing within 7 business days to review
  111  the terms, conditions, or appropriateness of continued
  112  visitation or other contact.
  113         Section 2. This act shall take effect July 1, 2011.